RIFFAT IQBAL vs Mst. FATIMA BIBI and others

ABUDL HAMEED DOGAR, J.---This appeal, with leave of the Court, is directed against the judgment dated 20-2-2006 passed by Lahore High Court, Lahore in Writ Petition No,6333 of 2004 filed by appellant was dismissed and order dated 7-4-2004 passed in Civil Revision by Additional District Judge, Mandi Bahauddin rejecting the plaint of appellant under Order VII, rule 11, C.P.C. For non- payment of court-fee was maintained.

2. It would be relevant to give little background of the case. Appellants filed suit for possession through pre-emption in the Court of Civil Judge, Mandi Bahauddin on 14-9-2002. It was on 5-3- 2003, the learned Civil Judge seized with the matter, directed the appellant to make good deficiency in the court-fee, which was determined to be Rs,5,459 by 17-3-2003. The appellant preferred an application under sections 148, 149 and 151, C.P.C. For extension of time to make compliance and the time was extended up to 27-3-2003. The respondent challenged the said order through revision before Additional District Judge which was allowed and the plaint as stated above was rejected. Feeling aggrieved appellant filed writ petition before learned Lahore High Court which was dismissed vide impugned judgment.

3. This Court on 24-4-2006 granted leave to appeal to consider, inter alia, the contention that extension of time allowed by trial Court to the appellant/pre-emptor for making up the deficiency in the payment of court-fee under sections 148, 149 and 151, C.P.C. Was unjustifiably recalled by the learned Additional District Judge, Mandi Bahauddin.

4. We have heard Messrs Hifz-ur-Rehman, learned counsel for the appellant and F.K. Butt, learned counsel for the respondents at length and have gone through the record and the proceedings of the case in minute particulars.

5. Learned counsel appearing on behalf of the appellant contended that appellant being a lady was unaware of the law and instead of approaching the Court asked the Patwari about determination of the cart-fee, thus she was not able to make the deficiency within time and requested for further time. According to him learned trial Court was competent to extend the time as contemplated under section 148, C.P.C. In support he relied upon the case of Sultan Ahmad and others v. Khuda Bux and others 1986 SCM R 1005 and Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCM R 179.

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6. On the other hand learned counsel for the respondents supported the impugned judgment and contended that extension of time was unjustified. There have been concurrent findings of two Courts below, as such, the impugned judgment does not suffer from any illegality. In support he relied upon the case of Mubarak Ahmad and 2 others v. Hassan. Muhammad through Legal Heirs 2001 SCM R 1868.

7. This Court in the case of Sultan Ahmed referred supra held that the second order prescribing time for making up deficiency of court-fees and findings, was passed without application of mind and ignorance of the orders passed earlier under which the time allowed had already expired and the conduct by making up a proper application. It has been observed that the plaint as not liable to be rejected under Order VII, rule 11(d), C.P.C. Unless the Court had first made an order calling upon the plaintiffs to make up the deficiency in the court-fees by specifying the amount thereof. In this case the court-fee was determined by the trial Court and the plaintiff was directed to pay the same but he failed. As such this case is distinguishable with the case in hand. Similarly, the case of Shah Nawaz referred supra is not applicable on the case as it is on different facts and circumstances. The case-law cited in the case of Mubarak Ahmad referred supra by the learned counsel for the respondents is clear on the point and controversy. It has been categorically observed in the case that once an opportunity to make good the deficiency in the court-fees has been provided to the plaintiff and if he fails to discharge his legal obligation then he is not entitled to any relief. Moreover, plea of ignorance of-law by plaintiff was also found without any justification.

This Court in the case of Abdul Majid v. Muhammad Afzal Khokhar 1993 SCM R 1686 held that under Order VII, rule 11, Court was to require plaintiff to correct valuation mentioned in the plaint and also direct plaintiff to make up the deficiency in court-fee within a time to be fixed by the Court and on his failure to comply with the direction Court had to reject the plaint. This Court, in case of Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCM R 919 held that under section 149, Order VII, rule 11 and Order XLI, rule 1, C.P.C., where, however petitioner was guilty of contumacy or he acted in positive mala fide manner in regard to deficient court-fee, Court would decline to exercise discretion in his favour on that ground. Though after expiry of more than one month he paid deficit court-fee as, a matter of abundant caution, learned High Court was, thus, justified in concluding that petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend time.

8. Accordingly, we find no justification to interfere with the well-reasoned concurrent findings of the two Courts below. Resultantly, this appeal being devoid of any force is dismissed, with no order as to costs.